The State v. Palmer
| Decision Date | 13 March 1920 |
| Parties | THE STATE v. DEWEY HOBSON PALMER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Howard Circuit Court. -- Hon. A. W. Walker, Judge.
Reversed and remanded.
R. M Bagby and Sam C. Major for appellant.
(1) The record in this case is silent as to where this offense was committed. The evidence shows that it was close to the boundary line between Howard and Boone counties. The only evidence in the record as to the venue is that the offense was committed near Arnett's school house, but the record is silent as to what county Arnett's school house is located in. The court can take judicial notice of the boundaries of a county, but it cannot determine that a school house is in a certain county where the evidence is silent on the subject. State v. v. Hartnett, 75 Mo. 251; State v. Hughes, 82 Mo. 86; State v. King, 111 Mo. 576; State v. McGinnis, 74 Mo. 245; State v. Burgess, 75 Mo. 541; State v Bush, 136 Mo.App. 608. (2) The court erred in admitting the illegal and irrelevant testimony concerning the details of a difficulty which took place twenty minutes before the difficulty between the deceased and this defendant, to-wit the difficulty between the defendant and Frank and Nina Patton and Bill Patton. This difficulty had nothing whatever to do with the difficulty in which the deceased was shot. It transpired, according to the testimony of the State's own witness, twenty minutes prior to the difficulty between deceased and the defendant, and after the event had closed and the Pattons had gone a quarter of a mile across the Ewing field and the defendant had gone down the road with his brother and was waiting for the witness, Newt Hill. It was not a part of the res gestae and should not have been introduced under this guise. Wharton's Criminal Evidence (9 Ed.), sec. 264, p. 198; State v. Guinn, 174 Mo. 680.
Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
(1) The evidence concerning the altercation between appellant, and the Pattons and Bessie Level, should not have been admitted. The deceased was not present, and took no part in this affair, and did not encounter appellant until after this quarrel was over. 21 Cyc. 929; State v. Swain, 68 Mo. 612; State v. Clayton, 100 Mo. 520; Joyce v. Com., 78 Va. 290; Sewell v. Com., 3 Ky. L. R. 86; State v. Crabtree, 111 Mo. 141. (2) The question of venue is always a question of fact, and it may be proved like any other fact. State v. Burns, 48 Mo. 438; State v. West, 69 Mo. 404; State v. Shour, 196 Mo. 223; State v. Lee, 228 Mo. 497; State v. Schatt, 128 Mo.App. 624; State v. Gow, 235 Mo. 325; State v. McCawley, 180 S.W. 870.
MOZLEY, C. Railey and White, CC., concur.
On the 14th day of April, 1917, the prosecuting attorney of Howard County, in vacation of the court, filed an information against defendant, Dewey Hobson Palmer, charging him with having shot and killed Millard P. Wright under such circumstances as to constitute murder in the second degree. The information charges that the killing occurred in the County of Howard and State of Missouri. On the 6th day of November, 1917, defendant was put on trial in said county and convicted by a jury of murder in the second degree and his punishment fixed at twenty years in the State Penitentiary.
At the close of the State's case defendant demurred to the evidence, which was overruled by the court, and again at the close of the whole case the demurrer was renewed, but met a similar fate. Exceptions were duly preserved to these rulings and are set forth in the record before us. Motion for new trial was filed within the time allowed by law and, on the 1st day of April, 1918, it was overruled by the court and exceptions duly saved. The case is regularly here on defendant's appeal.
On the night of January 6, 1917, Jim Skinner, who lived in the eastern part of Howard County, near the dividing line between that county and Boone County, gave a dance, at which both defendant and the deceased were present, but there was no trouble of any kind between them. Defendant was sober. Deceased and his associates were drinking; had whisky with them, and deceased was more or less under its influence. A Mrs. Bessie Level, to whom defendant was paying court and whom he afterward married, was at the dance, in company with Bill Patton. When the dance subsided (which was past eleven o'clock at night) Mrs. Level and her escort, and Frank Patton and his wife, Ina Pearl Patton, and their three children, started home. Defendant wishing to speak with Mrs. Level rode up behind them on his horse and called to Mrs. Level, who stopped to talk with him and the conversation soon developed into a vulgar quarrel between defendant, Mrs. Level and Frank Patton and his wife, in which defendant it is said by the testimony of the Pattons to have made the most dire threats against anyone who dared to accompany Mrs. Level, insisting that he would attend to that duty himself, and coupling his threats with the most shocking obscenity and vile epithets. The matter terminated, however, in Mrs. Level and the Pattons, after the quarrel was over, proceeding on their way towards the home of Pattons.
After these parties had started through the field towards their home, Arthur Palmer, a brother of defendant, who had come during the quarrel, and defendant got on their horses and started west to go home; they had gone a short way when Newt Hill called to them to wait, as he was going their way. They waited for him and while so doing they heard some horses coming down the road towards them; they turned their horses around in the road and stood there. A loose mule was running towards them, and they could see horses with riders on them strung along the road coming toward them. Defendant told his brother to catch the mule, which he did, and was holding it by the bridle when the approaching parties (who proved to be deceased, Millard Wright, and Paul Cook) came up.
The testimony as disclosed by the record is conflicting from this time as to what happened between the time of the arrival of deceased and Cook, and what was said and done by defendant and deceased just before and when the fatal shot was fired. This conflicting testimony was submitted to the jury and their finding was favorable to the contention of the State.
At the trial of the case the court admitted, over the objection of defendant, all of the testimony in relation to the quarrel or difficulty between defendant and the Pattons which occurred before the trouble between deceased and defendant and when deceased was not present. As the admission of this testimony is challenged by appellant as being reversible error, we set it out in full:
Mrs Frank Patton, stated as follows: ...
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